Tuesday, December 30, 2014

As another year comes to a close on Dorf on Law, I have recently been thinking about the surprisingly large number of issues on which the basic facts should not be in dispute, but about which there is widespread ignorance. We have long known about the big examples of climate change and evolution, of course. There are also plenty of other examples of politically "controversial" issues that are actually not especially controversial among the public, such as whether there should background checks prior to gun sales (which had a 90+% approval rating before Republicans filibustered it last year), or to ban abortions outright (which has the support of only 21% of the public, compared to 28% support for "legal in all circumstances" and 50% for "legal only under certain circumstances").

I should at least mention the now-dominant misunderstanding of the election results from November 2014, which have been called everything from a "drubbing" to "ball crushing" (the latter on The Daily Show with Jon Stewart). Even though the Democrats' losses were clearly a disappointment to that side of the aisle, the fact is that a 9-vote swing in the Senate is hardly unprecedented (especially in the second mid-term of a two-term presidency). And the "historic" fact that Republicans will have their biggest House majority since the 1920's looks a bit less impressive when you look at the size of Democratic majorities for most of the second half of the 20th Century. Even so, that is not really a matter of believing something that is factually, demonstrably false, but rather of insisting on describing certain unremarkable facts in hyperbolic terms. It is puzzling that Democrats and liberals are so willing to buy into the hyperbole, but that is a different matter.

No, my interest here is in thinking about the issues on which there is little if any factual dispute, but on which most everyone either thinks there is controversy or even that the facts are the exact opposite of what they actually are. In his NYT column yesterday, for example, Paul Krugman described the disconnect between perceptions and reality regarding U.S. economic performance and job growth over the last six years. The myth, especially on the right (but clearly shared by mainstream journalists) is that job growth has been weak under President Obama, and that the government work force has grown under a big-government Democrat. The reality is that the economy has added 6.7 million private sector jobs but lost 600,000 public sector jobs under Obama, compared to the same point in George W. Bush's presidency, when the economy had added only 3.1 million private sector jobs, and public-sector employment was up by 1.2 million.

Or take my favorite topic, the federal budget deficit. The myth is that the deficit is high and rising, whereas the reality is that the deficit is currently at a very low level and, even if it rises in the way that the CBO says it might, it will still not come close to "exploding," as we so often hear that it will. At worst, the ratio of national debt to GDP will trend upward starting in the middle of the next decade. Granted, those forecasts are not "facts" in the usual sense of that term, but the usual discussion treats as a fact that the deficit is out of control, and that upcoming increases in the national debt are set to destroy the economy very, very soon.

Similarly, if you talk to almost any of my students (or anyone under age 50, for that matter), you will learn that the Social Security system is going bankrupt and will disappear before any post-Baby Boomers collect a dime in benefits. As I have demonstrated repeatedly (for 2014's leading examples, see a Dorf on Law post here and a Verdict column here), nothing about the laws governing Social Security, interacting with even the most pessimistic forecasts, supports that conclusion. In the worst-case scenario, benefits will be cut once (in about 15 years, although it could be 20 or 50 years, or never) by about 25%, and then they will resume their upward adjustment every year for inflation and wage growth. The system will not run out of money, and people who pay into it will get money out of it. The only question is whether we will allow that one-time cut to happen (which will, by the way, affect many Baby Boomers, if it happens at all). But everyone "knows" that Social Security is doomed, even though it is not.

A topic on which I have written only occasionally also suffers from this kind of craziness. The attacks on tenure for public school teachers, (see my Dorf on Law posts here and here) are based on several non-facts: (1) Teachers' unions have fought tooth and nail to prevent any and all reforms to teacher evaluations or rules for dismissal, (2) Students in schools with unionized teachers perform worse on standardized tests than those in non-unionized schools, and (the flip side of #2) (3) School districts (and states) that have abandoned teacher tenure have improved their educational outcomes. There are additional non-facts in the schools debate, including the idea that high-stakes tests actually measure anything useful, and that Democratic politicians do not dare cross the all-powerful teachers' unions (even though prominent Democrats have made careers of doing exactly that). But the three non-facts above are the central lies of the debate, because they make it seem that a system that has been repeatedly reformed has been in stasis, and they allow people to believe that greedy union bosses are the only thing standing in the way of proven reforms. The facts, however, simply do not support the starting points of the anti-teachers' union side of the debate.

As a law professor, I have also noted with bewilderment the fact-free nature of the attacks on law schools. One particular good example of this is the idea that law schools are pumping new graduates into a world without jobs, a lie repeated last week by the Washington Post, where a reporter blithely referred to the "shrinking job market for young lawyers," even though the Bureau of Labor Statistics has shown that this is simply false. (See excellent commentaries by Ted Seto and Stephen F. Diamond, here and here.) The good news is not great news, but it is certainly not true that the job market for young lawyers is shrinking, or even that it is smaller than it was before the boom ended, or that salaries are down. The news is good, but the people who report the news claim otherwise.

Finally, the most surprising example of a non-fact that "everyone knows" has to do with the divorce rate in the United States. Like almost everyone, I have taken as gospel that "50% of all marriages end in divorce." I am not sure why I blithely assumed that this number would be unchanged from year to year and from decade to decade, but I certainly believed that the 50-50 proposition on marriages was an established fact. Imagine my surprise, then, when I read that "[i]f current trends continue, nearly two-thirds of marriages will never involve a divorce"! Apparently, the researchers who know about these trends have been trying to get the facts out to the public for quite some time, but it wasn't until the NYT decided to run a feature column on "The Upshot" (its data-nerd section) that reality peeked through.

Of course, as the Times article points out, lower divorce rates are not necessarily good news, and there is a distinct class element as well. (Divorce rates are still about 50% for people without college degrees.) Still, it is striking that such a large factual change in such a widely-discussed social phenomenon is almost completely unknown.

On most of these issues, the continued fact-free nature of the discussion might seem to be relatively easily explained: One side of the debate actively distorts the issues and promotes lies as fact, and the media reports the differences as "he said he said" differences in opinion. That was certainly the pattern for a long time on climate change. But the reality is that the fact-friendly side of these debates is often silent, and the partisans who might be expected to welcome those facts seem to go out of their way to accept the fantasies of the other side. See, for example, Democrats' defensive crouch on Social Security, the economy, guns, schools, and so on. This could, among other things, reflect an underlying conservatism among supposed liberals, as I have often argued with respect to the Obama Administration.

But even the nonpartisan issues like legal education are driven by the myth-makers, not the reality-based folk. Moreover, none of those explanations can make sense of our continued ignorance about the divorce rate. There, it simply seems that people (including me) have no reason to question the accepted non-facts, and we expect the media to bring such news to our attention. We do so at our own increasing peril.

Monday, December 29, 2014

Despite my best efforts to block "comment spam" on this blog, the spammers have found ways around my defenses. Thus, if you go to nearly any post that is more than a week old you will find advertisements for gold, pharmaceuticals, and other worthless items--sometimes in Chinese, Arabic, or other foreign languages. Some of the comment spam uses an algorithm that randomly quotes parts of the post, so that it appears to the casual observer as an actual comment, except that upon inspection it proves to be nonsense with links to spammers' sites.

The comment spam appears to be more or less randomly distributed, but there is also an intersting bunching phenomenon, whereby one kind of comment spam appears to attract more of the same kind of spam. My personal favorite is an October 2012 post on the Ex Post Facto Clause. As I compose this post (on Friday, Dec. 26) it has 154 comments, nearly all offering to cast spells, presumably for a fee. The spellcaster spamvertisements mostly take the form of testimonials from people who claim to have benefited from the advertised spellcaster's magical spell.

Naturally, I googled "spellcaster comment spam." I found a number of bloggers who, like me, had received spellcaster comment spam and were bemused by it. More interestingly, I found a few sites (like this one and this one) where "real" spellcasters alerted the world that the comment spamming spellcasters were frauds.

At this point, I'm tempted to try my own hand at spellcasting--in order to banish comment spam. But being more a man of science than witchcraft, instead I'm going to try an experiment. I want to see whether this very post can become a spellcasting spam magnet by virtue of the fact that I have included "spellcasting" in the title of the post and used similar words throughout. Readers who are not themselves spellcasters are invited to add a few "seed" comments but then I ask that you back off to see whether we can generate a self-sustaining tree of spellcasting comment spam.

Friday, December 26, 2014

by Michael Dorf
It's the holiday season and that means I'm too burnt out, busy grading exams, and visiting family to write a new blog post. Thus, following my usual custom, I present the constitutional law exam I gave my students. For them, it was an 8-hour open-book take-home but you can take as much time as you like. Readers who wish to post answers are welcome to do so, but I won't grade those. Enjoy!

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Question 1 of 1:

After an outbreak of Ebola in El Salvador, officials with the Centers for Disease Control grow fearful that the disease could spread to Mexico and from there into the United States. In response, President Obama quickly negotiates a treaty with Mexico and Canada: the North American Ebola Free Zone Treaty (NAEFZT). The Senate ratifies it, as do the Mexican and Canadian governments. The Treaty obligates each country to “immediately adopt and implement effective Ebola border screening and to vaccinate 100% of the population against Ebola.” As of the date of ratification, there is no vaccine that has proven effective against the Ebola virus, although several experimental vaccines have shown promise.

Following ratification of NAEFZT, the Department of Homeland Security establishes 21-day quarantine facilities at land, sea, and air entry points into the country. In addition, Congress enacts the North American Ebola Free Zone Treaty Implementation Act (NAEFZTIA). As relevant here, NAEFZTIA contains the following provisions:

I.Congress has the authority to enact this Act under the Commerce Clause, the Borrowing Clause, the Spending Clause, the Taxing Clause, the Treaty Clause, the Necessary & Proper Clause, and/or any other powers that may be relevant.

II.Within ten days of the enactment of this Act, the Secretary of Health and Human Services (HHS), in consultation with the Chairman and Ranking Minority Member of the Senate Committee on Appropriations Subcommittee on Labor, Health and Human Services, Education, and Related Agencies, shall designate an “Ebola Caesar,” who shall serve for a period of five years, during which time he or she may not be removed by anyone other than the Secretary, and then only on grounds of death, complete incapacity, or gross incompetence. Notwithstanding any other provision of law, the Ebola Caesar shall have unreviewable authority to designate a vaccine as safe and effective against the Ebola virus. The Ebola Caesar shall make that designation based only on scientific evidence. [Footnote: In October 2014, President Obama designated Ronald Klain as the “Ebola Response Coordinator,” unofficially known as the “Ebola Czar.” The new position created by NAEFZTIA is officially to be called “Ebola Caesar” and, as described in the text, has responsibilities different from those that were given to Klain.]

III.Once the Ebola Caesar has designated a vaccine as safe and effective, the President shall issue an executive order designed to ensure that 100% of the U.S. population is vaccinated.

IV.Notwithstanding any other provision of law, the President is hereby empowered to spend up to $1 trillion to implement this Act and the Secretary of the Treasury is hereby empowered to issue debt instruments (bonds) to make up any shortfall between revenues in the Treasury and expenditures needed to carry out this Act and other authorized spending. The President may also adjust tax rates to ensure compliance with his executive order.

V.Neither the Religious Freedom Restoration Act nor the American Indian Religious Freedom Act shall apply to any obligations imposed under the authority delegated by this Act.

Three days after President Obama signs NAEFZTIA, Sylvia Burwell, the Secretary of HHS, secures written agreement from the Chairman and Ranking Member of the Senate subcommittee specified in the Act, and thus appoints Dr. Stephen Calderwood as the Ebola Caesar. Two weeks later, Dr. Calderwood designates EBOLEX, a vaccine produced by the BIGPHARMA corporation, as safe and effective. His official statement recognizes “that EBOLEX has not been subject to the full procedural requirements for approval of new drugs by the Food & Drug Administration, but NAEFZTIA does not require such procedures to address the current public health emergency. Moreover, I am assured of the safety of EBOLEX by the fact that it is derived entirely from broccoli, a vegetable that humans have been safely consuming for centuries.”

After a day-long price negotiation with representatives of BIGPHARMA, President Obama issues an Executive Order. As relevant here, it provides:

1.$32 billion are hereby allocated to purchase 320 million doses of EBOLEX at $100/dose.

2.Over the next seven days, the National Guard shall distribute doses of EBOLEX on a per-population basis to public elementary schools throughout the country.

3.Upon receipt of its doses of EBOLEX, the principal of every public elementary school in the country shall give notice to the local population that every person residing in the district—regardless of whether any household members attend that or any other public school—shall report to the school within three days to be vaccinated by the school nurse or other staff.

4.Public school principals and other school officials shall be compensated for their time at the rate of $40/hour. Funds are hereby allocated to pay these costs. If any school principal in a state fails to carry out the duties specified in this order, that state shall lose all federal funding for education for that school year.

5.Except as provided in part 6 below, any person present in the United States who fails to report and submit for vaccination shall be liable for an infection risk tax of the greater of $50 per day or one percent of her prior year’s annual income per day for each day he or she remains unvaccinated.

6.Any person who sincerely believes that the Bible forbids him or her from being vaccinated may decline to be vaccinated without penalty, so long as he or she consumes one ounce of broccoli per 20 pounds of body weight per day for a period of thirty days.

You are an associate in the law firm of Rosencrantz, Guildenstern & Stoppard. Senior partner Elizabeth Guildenstern asks for your help with a new case. The client is her second cousin Henry Bolingbroke, who is the principal of Waihee Elementary School on the island of Maui, Hawaii. Waihee Elementary is scheduled to receive its shipment of EBOLEX tomorrow, but already Bolingbroke has received an inquiry from a resident of the district, Bill Kahananui, who says that he does not want to be vaccinated because he has trypanophobia, a fear of injections. Kahananui finds the taste of broccoli unpleasant but much more tolerable than a needle. Kahananui was born and raised Christian but in 1977, when he was 22 years old, he abandoned Christianity in favor of traditional Hawaiian religion, which is polytheist and animist.

Meanwhile, Bolingbroke wants to do his legal duty but he does not understand why Ebola vaccines must be given to Hawaiians, in light of the distance from the mainland. In addition, he notes that a very recent article in the New England Journal of Medicine indicates that men with a Y-chromosome from native Hawaiian stock are naturally immune to Ebola. Mr. Kahananui is one-half native Hawaiian from his father’s side of the family and so he has the protective Y-chromosome.

Bolingbroke asks Guildenstern for an assessment of his legal obligations. She in turn gives you the following assignment: Write the analysis portion of a memorandum identifying and assessing the constitutional issues raised by the application of NAEFZTIA and the Executive Order to Kahananui, Bolingbroke, and the State of Hawaii.

Wednesday, December 24, 2014

Earlier this month, Professor Dorf posted an analysis of a lawsuit in which a lawyer brought a habeas corpus action in New York on behalf of Tommy, a captive chimpanzee. The courts had rejected the plaintiff's claim, both in the trial court and on appeal. Although Professor Dorf is certainly sympathetic to Tommy's situation, his bottom line was that the attempt to vindicate animal rights through innovative use of the courts is a doomed strategy, because judges almost universally share the same attitudes as the public at large regarding human exceptionalism. Here is the final paragraph of Mike's post:

"Some day, lawsuits on behalf of animals may be a sensible way to advance
the cause of animal rights. But so long as the vast majority of
people--including the vast majority of judges--reinforce their own
psychological investment in the normality of exploiting and killing
animals every time they sit down to a meal or put on their shoes, a
better strategy will be to focus on changing individual hearts and
minds."

As if to prove Professor Dorf's point, at nearly the same moment that he was writing his post, the editors of The New York Times wrote "Horse Nonsense From City Hall," in which they mocked Mayor DeBlasio's proposal to ban Central Park carriage horses by mid-2016. The editorial is so nonsensical, so lacking in anything other than scattershot assertions and innuendos, that it can only have come from the minds of people whose hearts and minds are certainly not where they would need to be to make real progress.

To be clear, I understand that the carriage horse problem is a very small part of the massive tragedy faced by nonhuman animals every day. If one were looking for the worst offenders, carriage horse owners (and riders) would hardly top the list, and even "sport hunting" is quantitatively minor. Even so, one takes one's victories where they can be found, and sometimes solving 100% of a small problem is better than throwing stones at the edifice of an enormous problem. Work must proceed on all fronts where progress is possible, long term as well as short term, but it is simply not true that solving small problems is per se pointless or wasteful.

The closest the Times's editors come to an argument on the merits is their description of carriage horses as "a well-loved, well-regulated, law-abiding part of the tourist economy." But of course, that is merely an example of Professor Dorf's point, which is that one can "love, regulate, and pass laws" in ways that simply reflect the degraded states of people's hearts and minds. I have heard beef producers profess to love cows, and some of those producers even follow safety regulations and animal welfare laws, but that does not mean that they are not torturing and murdering untold numbers of sentient beings. It only means that they are doing so in the way that the society as a whole finds acceptable. (Of course, many -- perhaps most -- factory farms violate even those minimal laws and regulations, and then they persuade legislatures to make enforcement a joke.) When the big fight in "animal welfare" is over whether it is acceptable to have pigs living in crates that prevent them from turning around, then calling an industry well-regulated and law-abiding proves nothing.

Beyond that, the editorial relies on two strategies to change the subject from animal cruelty: (1) This is all crass politics, and (2) Why rush into this when there are so many unanswered questions? (It is actually difficult to figure out what the editorialists' main points are, because they lurch back and forth among their ill-formed arguments throughout a very short piece.)

On the first point, the editorial board calls on the Mayor to "move on from the foolish campaign promise to shut down the industry, made last year
to a small, loud and financially generous group of horse-rights
advocates." Yes, it is just a bunch of rich malcontents who care about horses, right? Or maybe it is all about political corruption, as the editors wonder what will happen to the "coveted property on the West Side of Manhattan" where the horses are currently stabled, and then note parenthetically: "Not for nothing do people wonder why the force behind NYClass, the group
pushing the anticarriage crusade, is a real estate developer, Stephen
Nislick." Yes, the land will probably be put to other uses. Would the Times be happier if the mayor promised that he would never let that land be used again? (The editors also ask how the horses will escape slaughter, without noting that rescue groups are already arranging adoptions).

And if it is not direct corruption, then maybe it is all political back-scratching: "And does this have anything to do with the $1 million ad
campaign financed in part by NYClass to eliminate Mr. de Blasio’s main
rival in the primary, then-Council Speaker (and carriage defender)
Christine Quinn?" This, however, merely returns us to the classic question in politics: Do people support a candidate because he shares their views, or does a candidate share their views in order to get people to support him? Either way, however, why should we care? None of this was secret during the campaign, and the new mayor is trying to do one of the things that was debated extensively before he was elected.

At this point, the arguments become utterly incoherent, alternating between invocations of false populism and trying to let the perfect be the enemy of the good. On the former point, the editors ask, "Why eliminate an entire class of Teamsters union jobs?" later followed by a complaint that the mayor is not really "a defender of unions and small businesses, and whose job it is to promote the city as a place for tourists." I cannot help but recall the classic Saturday Night Live fake ad for the fictional Acme Puppy-Grinding Company, the tagline of which was: "Puppy grinding. Sure, it's disgusting, but think of the jobs!"

On the latter point, as part of their claim that they mayor has adopted a "selective animal-rights pose," the editorial board asks: "Why are no advocates talking about getting rid of Police Department horses, which have tougher jobs than carriage horses?" Why indeed? And if the mayor were to propose eliminating the NYPD horse brigade, would the Times not complain that he was trying to get rid of a well-loved tradition, that the horses would just end up being slaughtered anyway, and on and on?

As much fun as it is to critique the nonsensical and disorganized jumble of assertions in the Times's editorial, the more important question is where the heck it all came from. The Times's editorial board is not usually like this, making arguments of a sort that they would normally ridicule if anyone else tried to apply them to other policy issues. But here, they just say, in essence: "What's the big deal? People like to see horses prancing through the City. Nobody's hurt. And the horses get to wear pretty plumes and are fed regularly."

There are many days when I feel that hearts and minds are changing for the better, and then there are days like this. If the Times cannot even get its head around something this basic, a simple baby step toward becoming a society that does not exploit animals at human whim, then there is much more work to be done than I had realized.

Tuesday, December 23, 2014

In my Verdict column for this week, I discuss an Iowa case involving a man arrested for sexual assault for having had sex with his wife, a woman who was suffering from Alzheimer's disease at the time (she has now died of complications from the disease). In the column, I take up the question of fairness to the defendant as well as the larger issue of whether we ought to be protecting Alzheimer's patients from having what may in fact be consensual sex, just because their mental capacities are diminished.

In this post, I want to raise an uncomfortable possibility regarding how the law and our society treat people with a diminished mental capacity. I think it is possible that rather than seeking to protect the autonomy of the vulnerable (and their corresponding interest in not being violated when they are in a diminished state), laws and policies may instead (or in addition) reflect a visceral sense of disgust. Many of us might find the prospect of sexual expression among impaired adults disgusting and might therefore be inclined to declare such people disqualified from having sex in virtue of their supposed incapacity to give consent.

How might disgust operate in this fashion? Disgust, while not invariably so, can often be a morality-related emotion. When we feel disgust about a prospective activity, that disgust can sometimes signal to us a moral (and not merely a physiological) revulsion. To give one example, I know a number of people who decided to stop consuming animal products when they witnessed the outrageous cruelty to which animals are routinely subjected in the process of turning their flesh and their bodily secretions (such as dairy milk and eggs) into products for human consumption. People's experiences witnessing such atrocities gave rise to a visceral disgust, and that disgust helped inform their understanding that consuming animal-derived products is unjust. A purely theoretical discussion of the ethics of instrumentalizing the lives of non-human animals might not have been as powerful and effective. Similarly, people who witness atrocities against other humans sometimes experience the urge to vomit, quite apart from their intellectual assessment of whether what they have seen "counts" as "torture" or some other categorically immoral act.

Disgust can often serve as a helpful guide to our moral compasses, particularly if we have not already become inured to witnessing injustice (as people who work inside slaughterhouses and people who regularly commit violence against other humans can sometimes become). but disgust can sometimes signal something very different, and it is risky to assume, without some cognitive reflection, that what inspires disgust must necessarily be a morally questionable activity. To give a simple example, most of us would feel some disgust at the prospect of eating a piece of fruit that is covered in mold and/or is foul-smelling. Yet there is nothing morally problematic about eating a rotting fruit. We have likely evolved to feel disgusted in response to rotting fruit only because such disgust deters us from eating something that would introduce illness-causing pathogens into our systems. If a particular person could benefit form eating a rotting fruit for some reason, it would therefore be silly for anyone to object to that consumption on moral grounds.

Yet when it comes to the subject of sex and sexual expression, people can feel disgust about all sorts of couplings, including those that involve individuals who are considered unattractive. And an uncritical view of this disgust as morally well-founded could yield very unjust consequences. I still recall attending a Paul Simon concert at Jones Beach about 15 years ago and hearing someone say, after viewing a very heavy person in a revealing swimsuit, that "people who look like that should not be allowed to dress in that way." The speaker had a clear moral tone to her voice, implying that the scantily clad overweight person had somehow violated the rights of others by dressing as he or she did.

When confronting the reality that elderly people have sex lives, many non-elderly people may feel disgust and may prefer to pretend that the elderly stop having sex when they reach an age at which their sex lives would nauseate the people around them. To my knowledge, no one is seeking to outlaw sexual relations between elderly people. However, the Alzheimer's patient is in some ways an extreme case of how many people view the elderly more generally. And most notably, the Alzheimer's patient may be willing to express her sexual urges without the inhibitions that social conventions ordinarily inspire. Therefore, if a person with Alzheimer's disease is feeling sexual or having sexual experiences, she is unlike to "spare" the rest of us the details. That is where disgust may come in because denial has failed us -- we suddently cannot escape the reality of geriatric sexuality.

The way in which the Iowa law is written may lend support to this theory. It provides that if two people are married and they live together, then the "suffering from a mental defect or incapacity" portion of the statute does not appear to apply. That is, if two people are married and living together, (where other people are, incidentally, less likely to be exposed to their sexuality), then one of them may have Alzheimer's (and may thus be just as much a sufferer of a mental defect or incapacity as her nursing-home-resident analogue) and yet the law does not classify their sexual interactions as rape. It is when they are living apart -- when other people may be "forced" to know about their sexual liaisons -- that the law steps in (though the law admittedly does not reference "disgust" and is not perfectly tailored to this objective).

I recogznie that what I suggest here is just a theory. Yet is seems, based on the infrequency with which such conduct is actually prosecuted, that the law serves some function other than to protect the vulnerable from exploitation. I would suggest that what it does is police the boundaries of morality in a manner that expresses the disgust of the population rather than a true concern for the bodily integrity of those with a diminished capacity. If I am right, then we (and particularly those of us who work with elderly populations in hospitals and nursing homes) would do well to think carefully about distinguishing between meeting our own need (to deny something that may disgust us) and meeting the needs of the populations of whom we purport to be taking care.

Monday, December 22, 2014

Last Tuesday, my Verdict column and my Dorf on Law post discussed the possibility that the Republicans will impeach President Obama next year, as part of a renewed standoff when the debt ceiling is reinstated in the Spring. My central argument was that the Republicans, who have arguably been using the debt ceiling to set an "impeachment trap" for the President, might instead find themselves trapped inside their own illogic, inexorably moving toward impeachment even as the party's establishment tries to prove that the party can "govern responsibly" (in the now-standard phrasing) and thus earn the trust of voters in 2016.

As so often happens here on Dorf on Law, several readers offered thought-provoking responses on the Comments board for Tuesday's post. Here, I want to discuss those comments, objections, and suggestions, because they have certainly helped me to think about this broad question more deeply and (I hope) more clearly. Those comments raised three important issues:

1) Impeachment is Never Going to Happen

Perhaps my entire premise is incorrect, and the Republicans will simply never impeach Obama, no matter what he does. After all, the party has correctly been blamed for the 2013 government shutdown, even though the most extreme members of Congress convinced themselves that they could "win" the shutdown. (Some of them apparently still believe that the shutdown was a political win.) If Republicans could not figure out a way to win a shutdown under Obama any more than they could win the shutdown under Clinton (which was, technically, two shutdowns), then they dare not imagine that they could impeach Obama without making him appear to be a sympathetic victim. Clinton's popularity surged after he was impeached and tried. Although the Republicans managed to win the ensuing election (sort of), they might not want to risk that again.

This very plausible argument raises two further thoughts. First, it oddly resonates with my second Verdict column and Dorf on Law post last week. There, I returned to an argument that I have made in various ways, which is that the Republicans' broad strategy over the last generation or so has been to undermine the legitimacy of the institutions of government -- to, in the words that I borrowed in my Thursday blog post, turn everything into a Putin-style "cynical farce" -- because the powers behind the conservative movement like it when there are no countervailing forces to prevent them from getting their way.

How does the unavailability of impeachment fit into that argument? As one commenter noted, some conservatives have recently argued against prosecutions of the CIA torturers and their superiors who ordered the torture, on the basis that this would merely be "prosecuting policy differences," or something like that. This means that there is no way to hold anyone in the opposite party accountable, no matter how lawless they have been, because attempts to enforce the law will be seen as cynical partisanship.

In the context of impeachment, that means that an important fail-safe in the Constitution has been neutered through misuse. Although currently that might make the Repulbicans unhappy, their own misuse of impeachment (and six years of constant talk about misusing it again) have made it arguably impossible for Republicans to take down Obama.

Even if that is true, however, it certainly means that any future Republican presidents would feel emboldened to do whatever they want, always knowing that they can say, "Hey, we never impeached Obama despite his tyrannical actions!" More to the current point, they might want to take the opportunity now to deal a death blow to future uses of impeachment by giving it one last shot while Obama is in office. I doubt that they are thinking about it consciously, or that they would be willing to put their 2016 nominee in the position of defending the impeachment to an angry electorate, but there is an arguable long-term purpose that even an unsuccessful impeachment could serve.

Still, I think that the more likely path to impeachment is the one that I described last week. It is not that the Republican leadership could be convinced that an impeachment is a good Plan A, but instead that path dependence will take over in the midst of a debt ceiling battle. What would happen if Republicans in Congress -- most of whom (even non-Tea Partiers) have publicly denounced increases in the debt ceiling -- finally refuse to blink, and Obama carries through on his announced belief that he would then have no choice but to start defaulting on legally required payments to federal obligees (veterans, Social Security recipients, schools, hospitals, Medicare providers, and so on)? No matter whether Obama protects bond holders by prioritizing their interest payments, will it be irresistible for Republicans to impeach Obama for his lawlessness? After all, he will have committed a constitutional violation by usurping Congress's spending power.

Overall, I have to say that I agree with the commenter that the Republicans will try very hard not to indulge their impeachment fantasies. I am simply saying that this is exactly the kind of thing that can quickly take on a life of its own. After all, the 2013 shutdown happened after months of assurances that the Republicans could never allow that to happen, and then it happened. Impeachment is a bigger deal, of course, but the Republicans inside and outside of Congress have been building a case against Obama that would fit perfectly with the picture of the President failing to pay some people while honoring obligations to others. He picks and chooses which laws to enforce, right?2) No Matter What Republicans Do, Democrats Should Govern Responsibly

Another comment pushed back against my suggestion that Democrats should play political games in response to Republicans' political games. I had argued that Democrats have allowed Republicans to have their cake and eat it, too, with Republicans mostly refusing to vote to prevent financial panic, knowing that Democrats will uniformly vote to do the right thing, joined by the bare minimum number of Republicans.

My idea was that Democrats should force Republicans actually to be the responsible party that they claim to be. I will discuss the strategy that I described, and its alternatives, in my third point below. But the threshold question is whether it is acceptable for Democrats to play politics with the nation's credit rating. We want to believe that politicians are not merely in it to win the next election, so why would it be good for the Democrats to throw the dice on a possible political win when "crapping out" would mean financial and economic collapse?

I suppose that everyone has a threshold of idealism, below which they will not go. I have always thought of myself as a cynical idealist, but here, I certainly think that it is more than acceptable for a political party to try to figure out a way to get the other political party to stop having it both ways. Yes, that does raise the possibility of its own kind of path dependence, but having seen this farce played out multiple times over the past few years, it seems at least worth considering ways to put Republicans' feet to the fire.

Now, an alternative to my suggestion is simply to have Democrats act responsibly, and then to win elections by pointing out to the American people that the Republicans have been irresponsible. But pointing out that the Republicans deliberately strangled the economy for the past six years and then ran against Obama on the economy was hardly an electoral winner for Democrats in 2014. At this point, I do find it hard to imagine that there is a political dividend in simply allowing virtue to be its own reward.

In addition, we should remember that President Obama has been responsibly signing the "clean" debt ceiling bills that have eventually arrived on his desk, even though Republicans have mostly not voted for them, and even though the President could have made his own demands before signing such bills. The question here is logically prior to that, asking whether the Democrats in Congress should force Republicans to prove that they can govern, before anything is sent to the President.

3) Winning the Politics is Tricky

Even for those who are still on my side in this discussion, another commenter pointed out that it is difficult to figure out how various strategies will play with the public. My suggestion -- an offer by the Democrats to provide one vote for a clean debt ceiling increase in exchange for every two Republican votes -- would (as that commenter noted) open the Democrats to claims that they were being unfair to Republicans, forcing Republicans to do the heavy lifting rather than being equal partners. After all, by design, my suggested strategy could result in 146 Republicans and 72 Democrats voting for the bill, which would be a clear majority of Republicans and a clear minority of Democrats.

As I noted in my reply on the comments board, I am not committed to any particular strategy. For example, the Democrats could instead say, "If half of the Republicans will vote the right way, then more than half of us will do so, too, and that will guarantee passage." That would probably look more "fair" to outside observers, and Democrats could even claim to be generous, by providing the tie-breaking vote. But this strategy, too, is not really the point. My idea is to have Democrats respond to Republicans' brinksmanship by refusing to be the reliable chumps who allow Republicans to fulminate about the evils of debt and then to run for re-election on a record of never having voted for a debt ceiling increase.

In response, my commenter suggested that I had missed an even bigger point, which is that the Democrats would risk losing the politics by playing politics in the first place. Another commenter referenced the 80's movie "War Games," where a super-computer learned that the only way to win the game of thermonuclear war is not to play. After all, I titled my post "How Will Democrats Play the Impeachment Trap Game?" Maybe the right answer is not to play at all, both because of the risks to the country and because even a non-catastrophic result is not a guaranteed political winner.

Indeed, I criticized another writer last year for suggesting that the President should never blink during debt ceiling negotiations, and if the Republicans actually failed to act responsibly, then the President should simply allow default and "win the politics." That struck me as a terrible idea, because it would have the President choosing to allow a default for political purposes (and, along the lines of the argument here, it might not even work politically).

The difference, as I noted above, is that we are now talking about what Democrats should do during the stare-down phase. I think we all know that the Democrats would ultimately vote for a debt ceiling increase, but we also know that they have most definitely lost the politics thus far. They are still painted as the party of profligacy, even while Republicans vote for spending increases and tax cuts that require additional debt.

In the end, I think my position here boils down to this: There is a lot
of room between what the Democrats have done thus far, and the most
aggressive (and risky) things that they could do to try to win the politics. Being
earnest and outraged has not worked. Something else, even something
that falls far short of actually risking accidental default, might be
worth trying. That might seem like a retreat from my previous post, but in fact I am simply expressing confidence that Democrats can do something to get Republicans to stop winning by obstructing. So far, the Democrats have not even tried.

Friday, December 19, 2014

A few months
ago I started writing an essay suggesting that women's rights organizations and
other groups supporting the right of women to terminate their pregnancies
should engage in civil disobedience. I was going to urge them to occupy state
houses where anti-abortion legislation has passed or was being considered and to
confront so called "abortion counselors" at family planning clinics
with large numbers of counter-protestors. My motivation for the piece stemmed
from desperation over the current state of abortion politics in America.

But the piece wouldn't hunt. I couldn't find the
right words or reasons to advocate such a strong stance. My fear was that such
measures would just further incense those opposed to abortion rights, leading to
more laws and more violence.

So I started
writing another piece about how both sides of the abortion debate should try
hard to listen to and understand the other side’s arguments. I suggested we don’t
need to live in a zero-sum world when it comes to abortion and that name
calling and misleading labels do not advance the debate or the politics
surrounding the debate. Although compromise and civility might be hard to achieve,
I argued we should at least try to do better (on both sides).

I eventually
published the piece on this blog and have since thought long and hard about
both the final essay and the comments I received from trusted friends and
colleagues before I finished the essay. I think there is something important
to learn from the feedback I received.

One of my
colleagues, who has been very supportive of my essay and op-ed writing even
when he disagrees with my perspective, thought I should not publish the piece at
all (he is, for lack of a better label, a pro-choice liberal). He said that “as
someone who believes most things can be resolved in our society through
deliberative, constructive dialogue, I have a small list of what I would call ‘intractable’
social conflicts that are not susceptible to honest dialogue. Abortion is on
that list. Yes, everyone agrees we should talk, but you can’t talk if the
parties are operating from a completely different set of facts ….”

Many of the
comments that appeared on this blog after the essay was published echoed a
similar theme.

Another
friend, a conservative woman (but in favor of Roe) in her seventies, did not like the essay at all. She said: “I
think your position is untenable. Most people either accept the need for abortion
or are fundamentally opposed. I don’t think empathy and an open mind can be
called up. I think respect for the laws and personal autonomy is what should be
emphasized.”

A nationally
known conservative said: “when I first picked up your essay, I was expecting
that overturning Roe v. Wade would be
one of your points on which everyone ought to be able to agree. That’s surely
the key to working out this issue.” He also said that “if something like this
is ever going to work, the reader ought not to be clear on where the author
generally stands on the issue. Given the battle of semantics, that’s a
difficult task for anyone to achieve. But no reader will come away from your
piece thinking that you might be opposed to abortion.”

And, another
colleague had this to say: “I agree that it would be helpful to have a more
constructive/productive discussion between the two sides, but it’s hard to see
how you don’t inevitably reach an impasse in a substantive discussion. At some
level, it is hard to compromise when fundamental moral beliefs are at play,
which is why the larger debate probably has to be about where we place decision-making
power (vs. what the fundamentally “right” decision is). So maybe getting both
sides to focus more on the process (vs. where that process should ultimately
lead) might be a helpful way to move forward.”

These, and
many other similar comments from other readers, suggest that maybe we need to
stop trying to convince one another on the ultimate morality or not of
terminating pregnancies and more on how we should structure the conversation as
a matter of process. This is not inconsistent with the idea I expressed in my
first essay that, maybe, just maybe, those who think abortion should be an
almost absolute right (at least prior to viability or sentience) and those who
think it should be almost always forbidden (except maybe in cases of rape,
incest or when the life of the woman is threatened), can agree to disagree on
the underlying merits but try to have constructive dialogue about who gets to
decide and under what broad rules. I think I agree with my conservative friend
that Roe and Casey may have to be scuttled before such a meaningful dialogue can
take place.

A nationally known intellectual figure
suggested to me that most people who strongly oppose abortion do so on
religious grounds and people can’t talk about religion. That may be true and
may also be why abortion is so hard to talk about. So, perhaps the conversation does
need to turn back to who gets to decide the question. If that is true, maybe the
courts do need to step away, which will place ultimate and final responsibility
with elected leaders.

Many of
those in favor of abortion rights will label that “unilateral disarmament” but
I am not so sure. If the courts do step away, those who favor women having the
right to choose for themselves the morality or not of abortion may, in the long
run, be pleasantly surprised by the results. But that, alas, is a discussion
for another day.

Thursday, December 18, 2014

Scheduling changes resulted in my writing two Verdict columns this week. I discussed Tuesday's column in a post on Dorf on Law the same day. Turning from "impeachment traps" to torture, today's column compares the substance and the politics of the Senate's CIA torture report -- a scandal if ever there was one -- with what I have long called the "IRS non-scandal scandal."

The comparison is powerful and revealing, but precisely for that reason, it is also uncomfortable. After all, even to compare the vicious atrocities revealed in the torture report to anything else, and certainly to anything as minor as the things that some low-level IRS employees did to some groups applying for 501(c)(4) status, risks diminishing the horrors of what the CIA did at the behest of the Bush/Cheney people. This meant that, in order to make any meaningful comparisons, it was necessary to discuss things at a higher level of abstraction, to compare worst-case scenarios.

And the worst-case scenario in the IRS non-scandal scandal was, as I have always acknowledged, truly bad, if it had been true. If there really were any credible evidence suggesting that the Obama Administration had orchestrated an effort to harm its political opponents by abusing the power of the IRS, that would be scandalous. Happily, no such evidence has emerged. Instead, the dead-enders have been reduced to saying, "There must be something going on. We just need to keep digging."

Why are they so certain that something evil was afoot? Apparently, they find it hard to believe that their opponents are not as cynical as they are. (Dick Cheney himself said that the Obama people must have been using the IRS for political ends -- presumably because he could easily see himself doing the same thing.) Because these people simply believe as a matter of deep commitment that something must be out there, the game is then to infer evil intent from every comment and action by the President. Remember when Obama, in a State of the Union Speech, criticized the Citizens United decision? Most people remember that moment because of Justice Alito's angry facial expression, caught on camera. IRS scandal-mongers, by contrast, have insinuated that there is somehow a connection between Obama's comments and the IRS employees' actions.

Again, however, I concede in the column that this could have been a bad thing. The people who worry about the IRS possibly being misused for political ends are not worrying about something that is inherently harmless. They are simply refusing to give up the ghost on an investigation that has gone nowhere, and that shows no signs of ever leading anywhere.

By contrast, as I note, the CIA scandal is not a first step down a slippery slope, about which we must be vigilant in order to prevent real atrocities. It is a case of real atrocities.

One idea that I mention briefly toward the end of the column, but which I do not develop in any detail, is the comparison between possible excuses for refusing to prosecute or investigate the CIA, but to go after the IRS with guns blazing. Remember, in order even to compare the IRS non-scandal scandal with the CIA torture scandal, we had to "go meta," in order to find some way in which the two situations could be comparably bad. Once we have done that, however, then we must also be willing to apply the same level of generality to the arguments for and against aggressive prosecution of wrongdoing. If the argument is, "We would harm America by failing to understand the important public service that the CIA provides," then the argument could also be, "We are harming America by vilifying the IRS."

How is that damage done? The one thing we know about tax collection is that it requires the consent of the governed. It is essential not just to have taxation with representation (quick shout out to the residents of Washington, DC!), but people must generally comply with the laws in order for people to be willing to continue to comply with the laws. Think of driving on a highway: If everyone can see that everyone else is generally complying with traffic laws, and that speeders are ticketed with some regularity, then pretty much everyone obeys the law. If a time comes when people no longer think that is true, chaos ensues.

In the tax realm, this is not hypothetical. One of the empirical puzzles that tax scholars have tried to explain is the relatively high rate of compliance with tax laws in the US. From a certainty/severity criminal law standpoint, there should be much more cheating on taxes in this country. Countries with low "tax morale," e.g. Greece and Italy, spend much more money trying to collect much less tax revenue, because everyone is cheating.

So, at a sufficiently high level of generality, one could make the argument that the future of America depends on a functioning government, and the government depends on revenue, and the ability to collect future revenues is threatened by politicians "looking backward" and attacking the IRS and its employees (and, hardly coincidentally, cutting its budget even as the IRS's legal responsibilities expand). Attacking the CIA makes Americans less safe (an assertion that is obviously false)? Well, attacking the IRS puts American democracy itself at risk!!

As I make clear in today's Verdict column, I do not believe the conclusion of that argument. I explain the argument not because I believe that we should refrain from investigating and (where appropriate) punishing IRS employees, but because I believe that we should investigate and prosecute crimes at the CIA, wherever the evidence leads. If the "look forward, not backward" argument from Obama is justified by apocalyptic fantasies about the consequences of holding people responsible, then we can invent apocalyptic fantasies to justify nearly any course of action.

Nevertheless, the Republicans continue to treat the IRS non-scandal scandal as if it is the worst thing that ever happened, while a bipartisan consensus has emerged that will prevent the CIA from receiving even one-tenth of the angry attention that the IRS has received. Why? The most obvious explanation, I think, is the ease with which Cold War-style fear mongering rolls off the tongues of American politicians. Take a real bogeyman (the Soviet Union, or al Qaeda, or ISIL, or whatever) and use it to justify a no-holds-barred response. Taxes are not really life-or-death, after all, whereas Cheney can spend an entire interview justifying torture by invoking 9/11.

There is, however, an additional factor in play. As I have noted in some previous Dorf on Law posts (especially here and here), an ongoing theme of movement conservatism is to de-legitimize the institutions of government. If everything can be portrayed as corrupt or ineffective, then the people will give up on the idea that the government can at least reduce the harms that the powerful inflict on everyone else. That the IRS enforces the one part of the tax system that is still progressive makes it all the more enticing as a target of the Right, which thrives on the mythology of the lazy 47% and all that.

All of which made it especially poignant to read an op-ed in The New York Times last week. Written by a British expert on Russian politics under Putin, the Times's tagline for the piece was: "The Kremlin’s strategy is to turn all politics into a cynical farce." The author's comments include the following: "At the core of this strategy is the idea that there is no such thing as objective truth," and "Sadly, this mind-set resonates well in a post-Iraq and
post-financial-crisis West increasingly skeptical about its own
institutions, where reality-based discourse has already fractured into
political partisanship." Notwithstanding the false equivalence implicit the last sentence, the author describes well the net result of the "We create our own reality" version of politics practiced by the 21st century Republican Party.

The common thread, then, is that the CIA's actions must be defended, because doing so reinforces the notion that the government is lawless (and always will be), while the IRS must be attacked because it is essential for the cynics to make everyone believe that the government is out to get them. The less trust we have in our institutions, the better for those who want to further pervert those institutions.